One of the outcomes of the COVID-19 pandemic was the accelerated trend toward remote working arrangements, where many employees work exclusively (or partly from home). This has led to a sea change in the labour landscape and employees’ rights and responsibilities, where most companies’ policies (and indeed, even Ontario employment law in itself) lagged far behind. As a result, in an effort to catch up and ensure proper regulation of workers’ rights, the Ontario government has announced significant changes to employment law in the province. Some of these change include: right-to-disconnect policies, prohibition on (most) non-competition agreements, and electronic monitoring policies.
In this blog post, we discuss the most recent development – electronic monitoring policies.
Electronic Monitoring of Employees in Ontario
Earlier this year, Ontario’s Employment Standards Act, 2000 (“ESA“) was amended to require certain employers to have in place a written electronic monitoring policy. In fact, the Ministry of Labour recently released guidance regarding the new ESA requirements, including what should be included in such workplace policy.
Specifically, all companies with 25 or more employees are required to prepare and implement an electronic monitoring policy by October 11, 2022 that covers how it electronically monitors employees at the workplace. In terms of content, an electronic monitoring policy must contain the following information:
- A statement confirming whether the employer electronically monitors its employees. If so, the policy must also include:
- a description of how and in what circumstances the employer electronically monitors employees
- the purposes for which information obtained through electronic monitoring may be used by the employer
- The date the policy was prepared and, if applicable, the date any changes were made to the policy
What is “Electronic Monitoring”?
The term “electronic monitoring” includes all forms of employee and assignment employee monitoring that is done electronically. Some examples include where an employer:
- uses GPS to track the movement of an employee’s delivery vehicle
- an employer monitors its employees’ emails and online chats
- uses an electronic sensor to track how quickly employees scan items at a grocery store check-out
- tracks the websites that employees visit during working hours
However, an employer’s policy should contain describe any form of electronic monitoring, including but not limited to:
- devices or other electronic equipment issued by the employer
- electronic monitoring that happens while employees are at the workplace
For example, if an employer is electronically monitoring its employees through their own personal computer they have decided to use for work purposes, the policy must specifically say so. It applies equally where the employee works from home, at the employer’s workplace, or under a hybrid “workplace/home” model.
If the employer does not electronically monitor employees, the policy must specifically state this.
Which Employers Must have a Written Electronic Monitoring in Place?
Only employers who employ 25 or more employees are required to have a written electronic monitoring policy in place. When determining whether they meet the 25-employee threshold, employers must count:
- the number of all individual employees regardless of their employment status, including full-time, permanent, casual or part-time
- all employees that they employ across all work locations in Ontari
- all employees in Ontario even if they work for 2 or more companies that are legally treated as one common employer (e.g., same ownership)
- all types of employees regardless of job title:
- homeworkers
- probationary employees
- some trainees
- officers of a corporation who perform work or supply services for wages
- employees on definite term or specific task contracts of any length
- employees who are on lay-off, so long as the employment relationship has not been terminated and/or severed
- employees who are on a leave of absence
- employees who are on strike or who are locked-out
- employees who are exempt from the application of all or part(s) of the ESA
The size of an employer’s workforce for complying with the 25-employee threshold is assessed on January 1 of each year for the purpose of determining whether an electronic monitoring policy is required for that year.
Employees Covered by the Policy
The electronic monitoring policy must apply to all of the employer’s employees in Ontario, including:
- management
- executives
- shareholders who are simultaneously employees of the company
For instance, if the employer attempts to have the policy apply on to some of their employees and not others, it would violate the ESA‘s requirements (e.g.,, if the policy applied only to the employer’s sales staff but not its managerial staff).
Interestingly, an employer does not need to have the same policy for all of its employees. For instance, an employer can have one policy that applies to all employees, or it can have one policy that contains several different policies (either as part of a single document or in multiple documents) that apply to different groups of employees. For example, a car dealership may decide to have one policy that applies to its office staff and a different policy that applies to its sales persons.
How Employers Must Provide the Written Policy to Employees
The employer may provide the policy to employees as:
- a printed copy
- an attachment to an email (as long as the employee can print a copy)
- a link to the document online if the employee has a reasonable opportunity to access the document and a printer (and knows how to use the computer and printer)
Limitations on Complaints and Claim Investigations
There limitations on how and the type of complaints that employees can file with respect to the employer’s written policy on electronic monitoring, specifically:
- a complaint can only be made to the Ministry of Labour (“MOL”) to be investigated by an employment standards officer if there is an alleged contravention of the employer’s obligation to provide a copy of the written policy within the required timeframe to its employees
However, even though there are clear limitations on what an employee can file a complaint about or have investigated by the MOL, an employer and employee may wish to seek legal advice about whether its policy would impact an employee’s rights or entitlements outside of the ESA, such as under their employment contract or common law (e.g., a wrongful dismissal claim, constructive dismissal claim).
Employer record-keeping requirements
Employers must keep copies of every written policy on electronic monitoring they have implemented for 3 years after the policy is no longer in effect.
Contact Employment Lawyer Today
If you are an employer who would like to know about Ontario’s new requirement regarding electronic monitoring, or if you are an employee who wants to learn more about your rights at work, our experienced employment lawyer at Bune Law can help. Contact us by phone 647-822-5492 or fill out the contact form to the side. We would be happy to assist in your employment law matter as quickly as possible.
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